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5.3. The respondent SDM, on the basis of these statements and after perusing the Topo sketch showing the private road passing through R.S. Nos. 139/1, 155/3, 4, 159, 160/1, 4, 5 & 6, purporting to exercise powers under Section 133 (1)(a), by his order dated 01.8.2007, made the following order:
".... The evidence of the President of the Kodanad Panchayat prima-facie shows that the roads under reference is used by the public at large from a very long time in order to reach Anna Nagar, Kamaraj Nagar, etc.. The road under reference is a detailed road. As such any obstructions to the same by any person is unlawful obstruction within the meaning of Section 133 Cr.P.C. The public are stated to be put to inconvenience and hardship by the arbitrary action of the Management of Kodanad Estate by preventing access over the said road. The obstruction still exists.
9.2. Mr. Wilson, learned Assistant Solicitor General of India representing the Interveners submitted that access to Road and its usable right is a fundamental right guaranteed under Article 19 (1) read with 21 of the Constitution and for this purpose, he relied upon the judgment of the Supreme Court State of Himachal Pradesh v. Umed Ram Sharma [(1986) 2 SCC 68] and particularly, referred to the following passage found paragraph 11 of the judgment:
Para 11: "It appears to us that in the facts of this case, the controversy lies within a short compass. It is well settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication."
9.3. This Court is unable to understand as to how this judgment is relevant to the facts of the present case. In that decision, the direction was given to the State to provide funds for laying a road after taking note of the fact that certain people were living in the hilly terrains were not having access to outside road. In fact, in that case, the question also arose as to how far the Constitution of India is governed by the Montesquieu system of separation of powers.
9.4. In paragraph 40 of the said judgment, the question was not answered as it was not relevant to that case. However, in the recent past, in more than one judgment, the Supreme Court had re-emphasised the Montesquieu doctrine as being applicable to constitutional review by Courts and it is unnecessary to cite any decisions in this regard.
[Emphasis added] 11.6. On the question that the road is a private road, the learned Advocate General referred to the judgment of the Delhi High Court reported in Ram Lal v. Dharam [2001 Cri. LJ 4507] and contended that even in a private road, if public has access, when such right is obstructed, powers under Section 133 Cr.P.C. can be invoked. He referred to the following passage found in paragraph 5 of the judgment:
Para 5: "Law in this regard is well settled. Section 133 Cr.P.C. provides summary remedy for removal of specific public nuisances or obstructions etc. It is not intended to settle private dispute between the two members of the public. Proceedings under this Section do not affect the right of the public to approach a civil Court for determining the question of title. The Magistrate's jurisdiction under this Section can be invoked even by a private individual despite availability of an alternative remedy. The encroachment on the public road, however small, would inevitably result in obstruction to the persons, who may have the occasion to use the same. The expression in Section 133 Cr.P.C. "which is or may be lawfully used by the public" clearly shows that all that is required to be shown is that the land in dispute is the public way, etc. which can be lawfully used by the public. The expression "public way" has not been defined in the Cr.P.C. or the Penal Code. Public way is the place where the public has a right to go or to which public can have an access by way of right either by admission, usage or otherwise. It is not necessary that the title of the place should be in the public. It would depend upon the character of the place and the usage actually made of it in the past or at a given point of time. These are all questions of fact which can only be determined after proper adjudication."